Colorado Bar Association

Colorado courts have been touted by the usual cheerleaders – the Colorado Bar Association (CBA), the Denver-based Institute for the Advancement of the American Legal System (IAALS), and of course in the Colorado Supreme Court Chief Justice’s “State of the Judiciary” speeches before the state legislature – as a shining example of juridical excellence and an “ideal” Colorado judiciary.

The truth – the actual “state of the Colorado judiciary” – falls a bit short of these lofty pronouncements.

In fact, some national organizations have gone so far as to label Colorado a “judicial hellhole.”

A pair of ballot initiatives are seeking to address the last two of these systemic deficiencies on the November 2014 ballot.

The most recently filed and approved initiative (based on clearing the title board), listed as Proposed Initiative #94 and called by the initiative proponent the “Honest Judge Amendment“, seeks to transfer oversight and responsibility for investigating and sanctioning judicial misconduct from the current “Judicial Discipline Commission” – which operates under guidelines set by the Colorado Supreme Court, a classic “foxes watching the henhouse” situation – to an Independent Ethics Commission (which would at least have the benefit of not being “of the lawyers & judges, for the lawyers & judges”).

The initiative proponent, an issue committee named “Clean Up The Courts“, lists the following arguments in favor of the initiative:

Why this amendment is needed:

The constitution currently states judges may be disciplined for any violation of the Code of Judicial Conduct.

But the Supreme Court currently issues judicial discipline rules.

There is a conflict of interest in judges issuing rules about judicial discipline.

The Supreme Court acted on that conflict and issued an unconstitutional rule that means judges cannot be disciplined for anything that can be appealed.

The rule eliminated the “any violation” standard in the constitution.

Over the last 10 years, 89.5% of complaints against judges have been dismissed due to the rule.

There has not been a published case of judicial discipline since 1986.

You are not protected by the Code of Judicial Conduct when judges issue rulings.

The Supreme Court is completely above the law.

The only way out of this unlawful and unethical situation is to amend the constitution so there is no longer a conflict of interest in judicial discipline.

How this amendment solves the problem:

The constitutional “any violation” standard is revived.

Discipline is transferred to the Independent Ethics Commission, so there is no longer a conflict of interest in judicial discipline.

The constitution is amended to specifically state that if a judge violates the Code of Judicial Conduct in an appealable order, the judge can be disciplined.

If there is a finding of probable cause, discipline proceedings are public.

Judges do a better job because they know they will be held accountable.

You are protected from judicial misconduct.

You can have more confidence in judges.

In numeric order, the first of these initiatives, Proposed Initiative #79, seeks to increase the threshold of votes required for a judge to stay in office in Colorado’s uncontested judicial retention elections from the current simple majority (50% +1 of total votes cast, including undervotes) to a two-thirds majority:

Shall there be an amendment to the Colorado constitution increasing the number of “Yes” votes required for a justice or judge to be retained in office from a simple majority to a two-thirds majority in the November 4, 2014, general election, and in every election thereafter?

The initiative proponent, an issue committee named “Clean Up The Courts“, lists the following arguments in favor of the initiative:

Why this amendment is needed:

The unethical situation related above has gone unnoticed for almost 30 years because people don’t pay enough attention to judicial retention elections.

Judges run in uncontested retention elections.

Judges currently only have to get a majority vote even though there is no opposition.

Judges easily get retained due to a lack of information.

Judges easily get retained due to voter apathy.

A majority vote is what is used when we want a politician to be partial or biased.

As noted in a press release from the Clean Up The Courts organization, hiring Grueskin’s firm to oppose the initiatives is itself of dubious ethicality – since the law firm “is managed by a current member of the State Commission on Judicial Performance” – Heather Hanneman.

“The conflict of interest in Heather Hanneman’s actions is glaring,” said Chris Forsyth, an attorney who has practiced for 20 years and who is a proponent of the initiatives.

Hanneman is on the state performance commission which is charged with evaluating the performance of statewide judges and recommending to the public whether the judges should be retained. The judges at issue include Court of Appeals judges and Supreme Court justices.

“All appearances are that Hanneman’s firm is assisting those judges with covering up judicial misconduct and keeping the truth from the public. The public has the right to expect her to disclose judicial misconduct; not cover it up,” Forsyth said.

The Colorado Bar Association’s opposition to the initiatives highlights the far-too-cozy relationship of the bar association with the judiciary, and indicates a potentially corrupt relationship among the legal establishment that is not apparent to the average voter – and, perhaps, underscores the need for precisely the types of reform sought by these initiatives and other efforts.

The initiatives, irrespective of merit, face an uphill climb before even being placed before the voters; under the Laws governing the initiative process in Colorado, 86105 valid signatures are needed to qualify for the ballot, which is a significant (although not insurmountable) number for a grassroots initiative lacking major special-interest funding. (At this time, the ”Clean Up The Courts” organization is relying on volunteer petition circulators – solicited on the organization’s “Pitch In!” page)

The ”Clean Up The Courts” organization is not affiliated with Clear The Bench Colorado; however,

“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” – Abraham Lincoln

Clear The Bench Coloradowill, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance. However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions.

Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Two Republican lawmakers introduced a bill today that would impose a 10-cent fee on every movie ticket sold in the state, beginning July 1, to help fund an incentive program for promoting film production in Colorado.

The mania to circumvent the Colorado Constitution and avoid seeking voter approval of tax increases by calling them “fees” is apparently not an affliction restricted to the Democrat party alone. Leaving aside the policy implications of picking industry favorites for government support and subsidies (“corporate welfare”) at taxpayer expense, the proposed new “fee” is clearly a tax – since those paying derive no benefit (receiving neither good nor service) from the payment – and therefore subject to prior approval by a vote of the people (Colorado Constitution, Article X, Section 20 – the Taxpayer’s Bill of Rights).

It is not uncommon for lawmakers to propose measures involving fee increases in lieu of tax hikes, which require voter approval under provisions of TABOR, the Taxpayer’s Bill of Rights.

Legislators of both parties swear an oath to ‘support and uphold’ the Constitution – which includes that pesky Article X, Section 20. Like the executive and (especially) judicial branches, they don’t get to pick and choose which parts of the Constitution to support or ignore without violating their oath of office. Republicans should be especially sensitive of this oath – and of the constitutional requirements and restrictions imposed by TABOR – because they made constitutionality (or lack thereof) the centerpiece of their (principled) opposition to last year’s “Dirty Dozen” tax increases (many of which they are now attempting to repeal).

To avoid the taint of hypocrisy, Republican party and legislative leaders should call on the bill’s sponsors to withdraw the proposed legislation. Otherwise, the GOP may find itself on shaky moral ground when (justifiably) calling for the repeal of last year’s “Dirty Dozen” tax increases – and set itself up for near-permanent minority status as the energized grassroots electorate turns away in disgust at the party’s perceived lack of principle.

plaintiff Clear the Bench Colorado (CTBC) has won some key battles in its effort to prove that a consortium of groups behind the Know Your Judge website constituted a political committee that failed to comply with laws governing spending and electioneering.

Last week, an administrative law judge denied a motion by Know Your Judge to quash CTBC’s subpoenas and another motion seeking a protective order limiting the amount of discovery in the case.

The victory is all the more remarkable because the case against the “Know Your Judge” consortium is being argued by a non-attorney: CTBC’s citizen-soldier Director Matt Arnold. Despite a litany of legal maneuvering and a barrage of legal briefs filed by the high-powered (and highly-paid) attorneys representing the legal-establishment special-interest groups making up the “Know Your Judge” Campaign, it was CTBC’s clear, concise reasoning that won the day:

Know Your Judge, which is represented by a team of lawyers – including former Speaker of the House Terrance Carroll – said in its motion to quash that the subpoenas were irrelevant, unreasonable and overly broad.

CTBC’s Response Brief demonstrated otherwise, laying out the grounds for requested discovery (getting the facts, which KYJ’s defense attorneys attempted to suppress) and the judge agreed:

Judge Judith Schulman was unconvinced by Know Your Judge’s motions, writing that “intent clearly is a relevant factor in establishing the elements of CTBC’s claim that Respondents constituted a political committee.” She also denied the defendants motion for a protective order, noting they’d failed to show that the records requested under subpoena contained any “privileged or private information that requires special protection.”

Although the legal game is far from over, at the end of the first period of play, so far it’s Underdog: 2, Big Bad Lawyers: 0

The matter is currently scheduled for a hearing Feb. 23. If the complaint is upheld, the defendants can be levied fines of $50 per day for late reporting, plus two to five times the amount of contributions. The latter fine would equal between $170,000 and $425,000.

Newly appointed Colorado Supreme Court Chief Justice Michael Bender (who was retained in office by the most narrow margin in Colorado history for an incumbent state supreme court justice along with his colleague, and ideological ally, Alex Martinez) delivered his first “State of the Judiciary” address before a joint session of the Colorado General Assembly on Friday, 11 January.

Unsurprisingly, Chief Justice Bender painted a rosy (and self-serving) picture of the state of Colorado’s judicial branch, touting the successes of some specialty courts (a veterans’ court in El Paso County, and a truancy court in Pueblo County) along with some personnel and administrative efficiencies achieved statewide. Bender even went so far as to claim credit for the judiciary having “helped balance the state budget” through various cost-cutting measures, and went on to claim that Colorado “continues to lead the nation in court technology applications” such as a new “statewide e-filing system for all cases” designed to increase efficiency and “yield additional revenue.” (Since when is “yielding additional revenue” a function of the courts?) Oh, and speaking of revenue – he was able to get in a plug for the new $258M judicial complex financed by a combination of debt (er, “not-debt”) and new “fees.”

Although the listed accomplishments are laudable achievements, they amount to somewhat superficial marginalia – not quite as trivial as tinkering with the deck chairs on the Titanic, but rather missing the point on the primary function of the courts: upholding the rule of law.

A more accurate assessment of the actual state of Colorado’s judiciary in that regard was contained in the American Tort Reform Association’s annual “Judicial Hellholes” report for 2010, released just last month. The report lists Colorado as one of only three state supreme courts nationwide to qualify for the dubious “honor” of being declared a “judicial hellhole” (Colorado joins Michigan and perennial favorite West Virginia in being so recognized).

“Traditionally, Judicial Hellholes have been considered places where civil judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits,” explains ATRA general counsel Victor Schwartz. “The jurisdictions we name as Judicial Hellholes each year are not the only unfair courts in the nation, but they are among the most unfair, based on our survey of litigants and considerable independent research.”

Actions speak louder than words; and although Bender’s speech gives lip service to the primacy of the rule of law, his actions on the bench have demonstrated the opposite. Indeed, Bender has been one of the most egregious perpetrators of putting personal views (his own) above the letter of the law.

The hypocrisy is stunning. Justice Bender opened his remarks with reference to our 2nd President:

As John Adams, one of our founding fathers, said we are a government of laws, not men.

“. . . that a form of government which unites all virtue . . . in a reverence and obedience to the laws, is the only one in which liberty can be secure, and all orders and ranks compelled to prefer the public good before their own; that is the government for which we plead.”

Adams’ point rings true today — to have a government that secures liberty and freedom, all branches of the government must be obedient to the law.

Yes, Justice Bender; ALL branches of the government.

To paraphrase another great president, “I knew John Adams… John Adams is my great-great-great-something grandfather [Ed. on my mother's side; true fact] and you’re no John Adams.”

Have you no shame, sir?

Such contrast between rhetoric and reality; the true “State of the Judiciary” in Colorado.

The Constitution of the United States begins with the words “We the people.” But neither the Constitution nor “we the people” will mean anything if politicians and judges can continue to do end runs around both.

So begins a superb article by esteemed economist and commentator Thomas Sowell, published Tuesday (“Political End Runs“).

Sowell states the case as eloquently as I have seen about the need for citizens to hold not only their elected officials, but also unelected bureaucrats and judges accountable – to constitutional limits specifically and the rule of law in general.

Sowell’s piece begins with an expose of how bureaucrats in the Medicare office are quietly implementing rules for the healthcare “reform” legislation that were explicitly rejected by Congress (during debate – such as it was – on the same legislation). As many critics pointed out at the time, the healthcare law ceded extraordinary power and authority to unelected bureaucrats to make up implementing rules as they went along.

The article quickly proceeds to a much more wide-reaching (and dangerous) trend in “political end runs” – judicial usurpation:

It is not only members of Congress or the administration who treat “we the people” and the Constitution as nuisances to do an end run around. Judges, including justices of the Supreme Court, have been doing this increasingly over the past hundred years.

Naturally, Sowell’s focus is at the Federal level – but the problem he articulates is very much a threat at the state level:

Professor Roscoe Pound likewise referred to the need for “a living constitution by judicial interpretation,” in order to “respond to the vital needs of present-day life.” He rejected the idea of law as “a body of rules.”

But if law is not a body of rules, what is it? A set of arbitrary fiats by judges, imposing their own vision of “the needs of the times”?

This is, unfortunately, indicative of the mindset which dominates our would-be “ruling class”:

In other words, judges were encouraged to do an end run around rules, such as those set forth in the Constitution, and around the elected representatives of “we the people.” As Roscoe Pound put it, law should be “in the hands of a progressive and enlightened caste whose conceptions are in advance of the public.”

Sowell’s solution?

Unsurprisingly, the same solution advocated by Clear The Bench Colorado: accountability.

The Constitution cannot protect us unless we protect the Constitution, by voting out those who promote end runs around it.

A superb article that should have been written (and widely disseminated) three or more months ago.

Although Colorado voters lost an opportunity (and a battle) this last November, the fight for judicial accountability continues. For those of us who would like to see Colorado’s judiciary reformed and returned to a proper role of upholding the Constitution and individual rights, we would appreciate your continued support – your comments (Sound Off!) and contributions are still needed.Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

The American Tort Reform Association’s annual “Judicial Hellholes” report for 2010 lists Colorado as one of only three state supreme courts nationwide to qualify for the “honor” (Colorado joins Michigan and perennial favorite West Virginia in being so recognized).

“Traditionally, Judicial Hellholes have been considered places where civil judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits,” explains ATRA general counsel Victor Schwartz. “The jurisdictions we name as Judicial Hellholes each year are not the only unfair courts in the nation, but they are among the most unfair, based on our survey of litigants and considerable independent research.”

For those of us who would like to see Colorado’s judiciary reformed and recognized for upholding the Constitution and individual rights, we would appreciate your continued support – your comments (Sound Off!) and contributions are still needed.

Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Picking up the story on Friday, Denver’s alternative weekly Westword (often a source of excellent investigative journalism) covered the issue in a bit more depth (landing some quotes from the loser, CEW’s Luis Toro): “Colorado Ethics Watch told to pay Clear the Bench Colorado $13,000 in legal fees.” CEW signaled their intent to “keep on doing what we’re doing” despite the legal rebuke. (Surprise!)

At the heart of the complaint was a website funded by the groups called Know Your Judge, which led visitors to information explicitly recommending retention. They also paid for radio and television advertisements.

If successful (the case has now been set for hearing on 23 February 2010, thanks to delays generated by a barrage of legal maneuvering by the former Speaker’s “politically connected” law firm team from Greenberg Traurig) the combined fines and penalties would represent the largest adjudicated Campaign Finance Law violations in the history of Colorado.

In Other News…

The big news about the Colorado Supreme Court was the accession of the newest justice, Monica Marquez, to replace outgoing Chief Justice Mary Mullarkey (who wasn’t voted out, but chose to resign before facing the voters in this year’s retention elections). While the accession of a new justice to the Colorado Supreme Court is certainly newsworthy, the number of news stories referencing the ethnicity and sexual orientation of the Colorado Supreme Court’s newest justice – a matter which should be of supreme indifference in assessing judicial qualifications, character, temperament, and performance – continues to be astounding.

From the Denver Post’s article (“Colorado Supreme Court milestone a family affair“) - which at least has the good taste to lead first with the human-interest family connection before bringing up her ethnicity and sexual orientation – to a veritable plethora of blogs, journals, and other media – the phrase “Marquez is the first Latina and the first openly gay jurist on the state’s high court” comes up again and again. A representative sample:

…and a host of other niche publications (I got tired of counting after the first half-dozen or so).

One of these days it would be nice to focus on a jurist’s qualifications and performance rather than the distractions of ethnicity and sexual orientation.

As far as CTBC is concerned the jury is still out on Justice Marquez’s performance, although we remain skeptical that she was the most-qualified of the potential picks, and continue to harbor concerns about her background in advocating for several unconstitutional rulings in the past few years. She deserves – and should get – a fair review with careful scrutiny given her track record (as an attorney; she’s never before been a judge) and circumstances of her selection to the state’s highest court.

Fortunately, voters will have the opportunity to render judgement on Justice Marquez’ performance in two short years, as she comes up for a retention vote in November 2012.

Last week’s Colorado Supreme Court ruling in the Volunteers of America v. Gardenswartz case created a windfall win for personal injury trial lawyers (the “ambulance-chaser” set) and incidentally, some of the clients they represent, in collecting damage reimbursements above and beyond amounts actually paid.

The Colorado Supreme Court’s “Mullarkey Majority” (yes, Chief Justice Mary Mullarkey wrote the opinion, in what may be her last parting shot at the Colorado Constitution and the rule of law) in a 4-3 decision (joined by usual suspects Michael Bender, Greg Hobbs and Alex Martinez forming the hard core of the “make it up as we go along” crowd) overturned both a lower court and clear statutory language (13-21-111.6. Civil actions – reduction of damages for payment from collateral source) limiting double-dipping damage recovery.

In plain language, the court ruled that plaintiffs (and their lawyers, who typically collect about a third or more of the total “recovered damages”) are entitled to the amount of medical costs originally billed, even if subsequent bargaining or other arrangements reduces the amount actually paid.

As Justice Nancy Rice noted in her dissent, the majority fortified its opinion by selectively misquoting a key co-sponsor of the bill, Sen. Al Mieklejohn, who argued, “I don’t think a person ought to collect more than once . . . for hospital costs and things like that.”

Mieklejohn argued that the victim’s insurer should “be allowed to collect” from the at-fault party “to get their money back.” That is, the insurer should be allowed to recover the costs it actually paid. Nowhere did the legislature suggest that the victim had a legitimate claim to a greater amount simply by virtue of buying insurance.

The dissenters, also including justices Allison Eid and Nathan Coats, noted that the majority’s opinion is contrary to “the legislature’s clear intent, the statute’s plain language and sound public policy.”

Why should you care?

Those of us with respect for the rule of law as a matter of principle are outraged at yet another blatant example of judicial “legislating from the bench” in overturning clear statutory language to achieve a desired outcome.

ALL of us who might receive medical care at some point in our lives (particularly those of us who actually bother to pay for medical insurance) should be concerned about the ruling’s impact on insurance costs (they’ll be going up) and enhanced potential for abusive lawsuits (they’ll increase).

Numerous articles across the country continue to weigh in on the subject of judicial retention elections in general, with mention of the successful effort to oust incumbent state supreme court justices in Iowa and coverage of other statewide efforts which fell short (including our neighbor to the east, Kansas, and of course in Colorado).

Many of the articles note that this year’s judicial retention elections may be the harbinger of a real paradigm shift in how the public views judges on the ballot, with a growing movement to hold judges – particularly the more politicized and politically-active state supreme court justices – accountable.

Judicial retention elections this year may well have been the most significant underreported political story of the year, with opposition and accountability efforts mounted in more states than ever before – which has some defenders of the status quo legal establishment worried.

A recent article published in The Palm Beach Post News (“Florida judges may be on political hot seat“) profiled the campaign to unseat two Florida Supreme Court justices against the backdrop of similar efforts nationwide:

An interesting addition to the list of mainstream media outlets commenting on the appointment was the left-wing political gossip site Colorado Pols. Normally I wouldn’t credit this collection of closed-minded chatty-kathies (literally; outside comments on the gossipy back-and-forth snark that passes as political discussion on the site are not allowed) with a link, but the insight provided by their reaction to the news (and partisan spin on it) along with their take on the significance of Bender’s appointment for the upcoming legislative reapportionment and Congressional redistricting battles (the Pols consensus view, with which I agree, is that it bodes VERY well for their side) is illuminating.